Friday, March 14, 2008

Myth Busters

Although Scott Greenfield and I don't see eye-to-eye on everything (or maybe very little :-)) - I do like him. Scott's not only a thought leader - he's a myth buster. Last week he posted here and offered comment on 5 myths related to defending drunk driving cases. Scott exploited myth #4 ("these cases can't be won") from this specific DWI piece to address the general nature of criminal defense work:

One critical myth, worthy of everyone's attention, is Myth 4, that these cases can't be won. This has become a general sense about all criminal cases, and is often the cause of defendants deciding that retaining counsel is a waste of money and that a plea of guilty or cooperation is their only hope. This belief has become pervasive, and is possibly the most damaging belief to the Constitution.

By the wholesale refusal to fight, and to challenge wrongful arrests or constitutional violations, we provide an incentive to government and law enforcement to ignore the Constitution and to further curtail our freedom. But we can't defend people who have decided that there is no way to win and no reason to retain counsel. We are here. We are ready. Now it's up to defendants to decide whether to fight or lay down and die.

I've talked with too many people accused of crime willing to give up without a fight and "take their medicine." Scott's right in that we cannot defend those folks who've decided there's no way to win and no reason to fight.

Qualified defense lawyers stand ready to take up arms in what may appear like no-win campaigns. Nevertheless, it's the responsibly of the accused to decide to fight. The accused has the power to choose and with that power comes responsibility. The responsibility to challenge bad stops, illegal confessions, and put the government to their burden of proof.

Our Constitution was written by those willing to fight and pay the price for freedom. Failing to avail ourselves of Constitutional protections is to accord it damage. "We are here. We are ready."